Skip to comments.Taming the Bench: MAGA Means Ending Judicial Precedent
Posted on 05/17/2019 6:27:38 AM PDT by Kaslin
“It is a maxim among these lawyers, that whatever hath been done before may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind. These, under the name of precedents, they produce as authorities, to justify the most iniquitous opinions; and the judges never fail of decreeing accordingly.” So said Anglo-Irish essayist Jonathan Swift in Gulliver’s Travels in 1726. Unfortunately, something has changed almost three centuries later:
Swift was rightly mocking the notion of “judicial precedent.” Yet it’s even more preposterous in our time and place, for at least 18th-century British judges didn’t have a constitution to violate. How is the principle even remotely defensible, however, in a nation with our Constitution, the “supreme law of the land”
One justice who apparently understands this is Clarence Thomas, who just wrote the majority opinion in a recent decision (Franchise Tax Board of California v. Hyatt) overturning a 1979 precedent. He was the ideal candidate for the task, as it has been noted that he’s not a “Court conservative” as much as an originalist. A conservative, after all, would hew to the status quo, which here means honoring precedent. In contrast, as SCOTUSblog pointed out in 2007, Thomas “believes that precedent qua precedent concerning constitutional law has no value at all; he does not give stare decisis any weight.” Thomas “believes that precedent qua precedent concerning constitutional law has no value at all; he does not give stare decisis [the notion that judicial decisions should not be undone]".
(Excerpt) Read more at americanthinker.com ...
Judicial Precedent is a garbage construct. Left wingers want to believe once you have a ruling you like, you can’t overturn it.. which is nonsense.
If the ruling was wrong it should be overturned. Period.
The left has never respected precedent unless it could serve as a springboard for advancing their cause.
I don’t believe you should just overturn precedent to simply do it.. but when the precedent is clearly wrong and at odds with the constitution..
Such as the 60s rulings on Religion in the public square and the 70s abortion decision... They absolutely should be overturned.
Dred Scott should have been overturned, but it was not, as no case overturned it.. and wound up being voided by constitutional amendment.
OT, but what’s happened to all the IBD articles you used to post? You seem to have moved to AT and TH and given up on IBD.
Trump, compared to all these people, including the low lifes on our side, but definitely the democrats, is so much more energized, that he’s going to beat them. He’s going to wear them down.
You can see this on the border. It’s a constant push back from Pelosi, until now she’s admitting that theres a crisis at the border.
Trump will prevails with our foreign adversaries also, and they know this.
While the tariffs are up, companies are moving their inventories away from China, which they should have done anyway.
Why not send this work to South American. Build their economies.
Why not send this work to the ME or Africa.
China, shot themselves in the foot, thinking they would beat this man.
They can’t and they won’t. He is smarter and more focused on this than they are.
I haven’t posted them in years. Someone that worked for IBD took over. I don’t even have the site in my bookmarks anymore.
The problem is PRECEDENT.
Democrats always ask for wiggle-room on issues like illegal immigration.
Once they get their exception, they argue PRECEDENT to bypass laws, rules, and traditions.
Once the camels' nose gets under the tent, the tent collapses.
NEVER ALLOW DEMOCRATS TO ESTABLISH "PRECEDENT".
(Never be reasonable - because whats reasonable one day is status quo the next day and forever.)
Plessy v Ferguson overturned by Brown v Board of Education.
Someone at American Thinker had been trolling me here on FreeRepublic - LOLL. it can’t possible be that “great minds think alike”. Further LOL.
There is zero constitutional mandate demanding the use of the construct of judicial precedent. It is purely an insttitional construct of some classes of American jurists.
It’s beginning is an exhortation to lower courts to “not attempt rulings that are contrary to case rulings the Supreme Court has already made”. Why?
The pretense is the “we have already ruled differently” with that “we” meaning “the Supreme Court”. In truth and reality it is never that “the Supreme Court” has already ruled and only that a majority of justices on the court at one time or another have ruled.
So the real protection attempted by the exhortation to lower courts to not rule differently than was determined in some earlier case before the Supreme Court, is not to in fact protect “the Supreme Court” as an institution, but to protect ONLY those Supreme Court judges that ruled a certain way in a certain case.
The Supreme Court while having and enjoying its separate powers and responsibilities should not see itself differently than does the Presidency and Congress in terms of the derivation of its powers and any mandate it has.
Each Presidency and each Congress has only two mandates - one to the Constitution, and one to the choice of the people to place it into office. Neither has any mandate to continue to support decisions made by prior Presidential adminsitrations or prior sesssions of Congress. Each presidency is a new one, and each sesssion of Congress is a new Congress.
The Supreme Court justices derive their mandate from the Constitution most of all AND the choices of the Presidents with concurrence from the Senate that placed them in their office. Each session of the Supreme Court ought to see itself as a new Supreme Court, with zero mandate to uphold any decision made by any prior Supreme Court.
Yes, it is totally appropriate to look at the arguments that gained a majority of concurrences with other justices in the decision in a previous case. That review has no mandate that those arguments must be accepted. They are there for the justices to consider, only to consider. Their own judgement is constituitionally appropriate for weighing whether they agree, or disagree with a prior ruling and the arguments from which that ruling was obtained. They - the justices - are NEW Supreme Court, with each new session, and the Constitution and the people are expecting them to act like one, and not act like robots programmed to follow past justices, including following in what they now believe to be past errors.
Stare decisis is an error. The sooner it dies, the better.
I've written about this issue many times on FR posts but this was the quickest to find.
It's called 'being ahead of the curve'.
We owe Roe v. Wade all the respect for preceded which was given to 5000 years of marriage as an institution before Justice Kennedy decided he was more enlightened than the yahoos who said it was between a man and a woman.
The problem is when “precedent” is used in lieu of accepted law.
It can be used as a tool to show the court (judge and jury) a similar situation has come up before and was decided a certain way but that doesn’t end the conversation; just that there might be a time saving “precedent” to look at. It’s not written law or the end all be all. Just another tool, maybe a time saving tool, maybe not.
I think the author is looking at big decisions like R v W as settled law as a precedent and there’s a strong case considering what it took to make that decision. I’m not arguing for R v W or against it; just saying that level of precedent does matter but it’s not settled law unless it goes through congress, gets appealed, then gets ruled on by SCOTUS. Even then it isn’t part of our US Constitution so until the day of ratification comes and this is, or isn’t, ratified one way or the other into the Bill of Rights; it can be changed back and forth endlessly.
This is why the pud pounding left is so wrong on gun control. The Bill of Rights plainly states the government has no right to infringe on our God given natural right to self protection through the use of firearms. There is no wiggle room. It’s a stated fact in our laws. As a country built on the foundation of law; this matters greatly.
The law is anything you can convince a judge to believe
Just Trump mode:
With a mix of Cloward-Piven overloading the dims on all fronts
It must frost the dims to see their favourite tool being used against them.
rump = Trump....sorry my bad...missed a T.
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